IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AVIS LEE SMITH,

Plaintiff,

vs. Civil Action 2:11-CV-769

Judge Watson

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner

of Social Security denying plaintiff’s applications for disability

insurance benefits and supplemental security income. This matter is

now before the Court on plaintiff’s Statement of Errors, Doc. No.

12 and the Commissioner’s Memorandum in Opposition, Doc. No. 15.

Plaintiff Avis Lee Smith filed her applications for

benefits on May 15, 2007, alleging that she is disabled as a result

of degenerative joint disease, fluid in both knees, diabetes,

congestive heart failure and “factc” disease (facet arthropathy).1

PAGEID 304. The applications were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before

an administrative law judge.

A hearing was held on March 31, 2010, at which plaintiff,

represented by counsel, appeared and testified, as did Steven S.

Rosenthal, who testified as a vocational expert. In a decision

1

Plaintiff originally claimed a disability onset date of December 5,

2005. At the administrative hearing, plaintiff amended that onset date to

April 30, 2007. PAGEID 68.

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dated June 30, 2010, the administrative law judge found that,

despite plaintiff’s severe exertional impairments, which preclude

the performance of her prior relevant work, plaintiff can

nevertheless perform a significant number of jobs in the national

economy. Accordingly, the administrative law judge concluded that

plaintiff is not disabled within the meaning of the Social Security

Act. PAGEID 120-21. That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined

review on June 24, 2011. PAGEID 56-60.

Plaintiff was 53 years of age at the time the

administrative law judge issued his decision. She has a high school

education and past relevant work experience as a phlebotomist and

a medical assistant. PAGEID 90-91.

II.

Plaintiff’s Testimony

Plaintiff suffered a work-related back injury on February

2, 2007. PAGEID 71-72. She has experienced chronic lower back pain

since that time. PAGEID 72. The pain is “nagging,” achy, sometimes

sharp and radiates to the hips. PAGEID 73. She takes medication,

injections and physical therapy for the pain. PAGEID 74. No

physician had ever discussed or recommended surgery. Id. She also

has problems with her upper back since 2005 and degenerative joint

disease in both knees. PAGEID 75. Plaintiff also testified that she

suffered a TIA in April 2008. PAGEID 77. Since that time, she has

experienced paralysis in two fingers of her left hand, on the left

side of her face and half of her tongue. PAGEID 78. She also

suffers from diabetes, which causes blurriness and dehydration.

PAGEID 79. Plaintiff also testified that she suffers from a bipolar

disorder for which she takes Welbutrin. PAGEID 86. Her medications

cause dizziness and sleepiness. PAGEID 85. 

At the time of the hearing, plaintiff was working 28

hours per week as a telemarketer. PAGEID 75. She is able to wash

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dishes, do laundry, cook, sew and sometimes go to the grocery

store. PAGEID 81-82. 

Plaintiff estimated that she can lift ten pounds. Id. She

cannot remain in any one position for long; she must get up three

or four times per night. Id. She must alternate between sitting

and standing. She must arise from a seated position after 15 or 20

minutes, and she cannot stand longer than 15 or 20 minutes. PAGEID

80. She estimates that she can walk five to ten minutes. PAGEID 81. 

III.

The Medical Evidence of Record.

Mary Ann Wynd, M.D., a specialist in occupational

medicine, treated plaintiff from February 2007 to December 2007. 

PAGEID 413-30, 643-91. Initially, plaintiff reported a fall at

work on February 2, 2007 which resulted in back and head pain which

plaintiff rated at 8 on an analog pain scale. Plaintiff also

complained of a frontal headache with associated nausea but no

vomiting. She denied radicular symptoms in the upper and lower

extremities. PAGEID 429-30. On clinical examination, Dr. Wynd

noted tenderness to palpation in the right parietal region of the

head with no palpable lump in that area, and tenderness to

palpation in the right lumbosacral region. Range of motion in this

area was limited. There was no cervical tenderness and range of

motion was normal. Sensation and strength were normal in the

bilateral upper and lower extremities. Id. Dr. Wynd diagnosed a

concussion without loss of consciousness and a back contusion. Id.

Plaintiff was referred to physical therapy, PAGEID 428, and aqua

therapy. PAGEID 426.

A March 30, 2007 MRI of the lumbar spine showed a small

synovial cyst at L4-L5 encroaching on the right lateral recess,

probably L5. There was associated facet disease at that level,

greater on the right side. The radiologist identified synovial

joint fluid and a minor disc bulge at the L4-L5 level. PAGEID 443.

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In June 2007, Dr. Wynd again noted tenderness to

palpation in the lumbosacral region but findings were otherwise

normal. PAGEID# 414-16. Dr. Wynd diagnosed a back contusion with

persistent low back pain. Id. Dr. Wynd also referred plaintiff to

the OSU Spine Center for evaluation and noted that plaintiff’s pain

“has persisted the past three months and is no longer simply due to

a contusion.” Id. Dr. Wynd limited plaintiff to lifting no more

than 10 pounds and limited her to only occasional standing and

walking and limited bending and twisting. Id.

Plaintiff was examined at the OSU Comprehensive Spine

Center by Ahmad Elsharydah, M.D., who could not find “a clear

etiology of her pain.” PAGEID 439-42. Dr. Elsharydah noted

complaints of S1 joint pain, much worse on the right than left, and

weakness of the right leg. “Whether or not this is due to the

synovial cyst we have seen on her MRI or just due to her not

wanting to move her legs secondary to her pain in her S1 joint is

unclear. Some of her other pain is likely due to her history of

degenerative joint disease.” PAGEID 441. Plaintiff was scheduled

for spinal injections and an EMG nerve conduction study. Id.

State agency physician Jeffrey Vasiloff, M.D., reviewed

the file in August 2007, PAGEID 571-78, and opined that plaintiff

could lift and/or carry and push and/or pull up to 20 pounds

occasionally and ten pounds frequently; could stand and/or walk

about six hours in an eight-hour workday; could sit about six hours

in an eight-hour workday; could occasionally balance, stoop, kneel,

crouch, crawl and climb ramps/stairs; and could never climb

ladders/ropes/scaffolds. Id. Dr. Vasiloff concluded that Dr. Wynd’s

June 2007 exertional limitations were not supported by the

objective evidence. PAGEID# 577. Dr. Vasiloff’s assessment was

affirmed by another state agency physician, Diane Manos, M.D., in

February 2008. PAGEID 713.

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In February 2008, Dr. Wynd opined that plaintiff could

lift/carry up to 20 pounds occasionally and 10 pounds frequently;

could frequently stand/walk; could sit continuously; could

occasionally bend, twist/turn, reach below the knee, and push/pull;

but could never squat/kneel. PAGEID 694.

Plaintiff suffered a stroke on April 7, 2008 for which

she was hospitalized for three days. PAGEID 919-26.

Plaintiff’s treating family physician from June 2005 to

at least April 2010 has been Holly Cronau, M.D. PAGEID 465-564,

601-41, 731-74, 778-835, 907-10. Dr. Cronau has treated plaintiff

for diabetes, chest pain, depression, smoking cessation and

hypertension. Id. On May 13, 2008, Dr. Cronau completed various

disability forms on behalf of plaintiff, PAGEID 715-19, and opined

that plaintiff could stand/walk for no more than two hours, for no

more than fifteen minutes at a time; could lift no more than 10

pounds; and is moderately limited in her ability to push/pull and

bend. PAGEID 716. From a mental standpoint, Dr. Cronau indicated,

inter alia, that plaintiff was markedly impaired in her ability to

perform activities within a schedule, to sustain an ordinary

routine and to work in coordination with or proximity to others and

to complete a normal workday and workweek without interruptions

from psychologically based symptoms. PAGEID 717. According to Dr.

Cronau, plaintiff was unemployable and would remain so for at least

12 months. Id. In April 2009, Dr. Cronau reaffirmed those

physical limitations. PAGEID 913.

In September 2008, Brad W. DeSilva, M.D., an

otolaryngologist, saw plaintiff for complaints of tinnitus and

dizziness. PAGEID 861-64. According to Dr. DeSilva, plaintiff’s

“vertigo may be an early onset of Meniere's disease. However, her

story is complicated due to her recent stroke.” PAGEID 861. He

referred plaintiff to vestibular rehabilitation. Id. In September

2009, Dr. DeSilva performed a flexible fiberoptic laryngoscopy for

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complaints of a globus sensation in plaintiff’s throat, a laryngeal

edema and laryngopharyngeal reflux. PAGEID 951-52. In March 2010,

Dr. Desilva diagnosed conduction hearing loss and chronic rhinitis.

PAGEID 948.

Rajaram J. Karne, M.D., an endocrinologist, saw plaintiff

in August 2008, upon referral by Dr. Cronau, for evaluation and

control of her diabetes. PAGEID 838-58. Plaintiff complained of

easy fatigue, night sweats, skin rashes, changes of the hair,

blurriness of vision, loss of smell, nasal obstruction, dental

problems, sputum, high blood pressure, changes in appetite,

heartburn, polyuria, reduced libido, muscle cramps, joint pain and

swelling, back pain and stiffness, headache, dizziness and

depression. Dr. Karne diagnosed diabetes mellitus, Type II,

uncontrolled. The doctor adjusted plaintiff’s medications. Id.

Plaintiff was seen by a counselor at Hope Counseling

Center on April 15, 2009 for feelings of being overwhelmed with

psychosocial problems, including problems with her seventeen year

old son (who has mental impairments), a job injury and the

aftermath of a stroke. Plaintiff reported that she had sought work 

for two years. She complained of frustration, anger control issues,

impatience and anxiety. Plaintiff was diagnosed with intermittent

explosive disorder, general anxiety disorder and a pain disorder. 

Her Global Assessment of Functioning was rated 60. PAGEID 880. The

counselor declined to fill out a form assessment of plaintiff’s

mental residual functional capacity supplied by plaintiff’s

counsel. PAGEID 881.

IV.

Administrative Decision

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of osteoarthritis, synovial

cyst of the lumbar spine, facet arthropathy and diabetes. PAGEID

114. The administrative law judge expressly found that plaintiff’s

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severe impairments did not include depression or severe functional

limitations due to a stroke, reasoning that the objective medical

evidence did not document such impairments. PAGEID 115. In

considering, and rejecting, plaintiff’s alleged severe mental

impairments, the administrative law judge specifically found:

There is no evidence the claimant was

diagnosed with and/or received any treatment

by a mental health professional prior to 2009

and then it was only well after the clamant

had filed for disability and been initially

denied. It is noteworthy that the claimant is

consistently reported by treating physicians

as not exhibiting any symptoms, mood, or

behavior indicative of anxiety or depression. 

Indeed, the claimant is noted as denying that

she does not [sic] have depression, anxiety,

or mood swing.

PAGEID 115 (citations to record omitted). 

The administrative law judge went on to find that

plaintiff’s impairments neither met nor equaled a listed

impairment. Id. Relying on the opinions of Dr. Wynd and the state

agency physicians, the administrative law judge found that

plaintiff has the residual functional capacity to sit for a total

of 6 hours in an 8 hour workday, to stand and walk for a total of

6 hours in an 8 hour workday, to lift 10 pounds frequently and 20

pounds occasionally and to climb stairs, balance, stoop, kneel,

crouch, and crawl occasionally. She cannot climb ladders or ropes

or work around hazardous machinery or unprotected heights. PAGEID

115-19. The administrative law judge “accorded little weight” to

Dr. Cronau’s May 2008 and April 2009 assessments, finding them 

“inconsistent with and unsupported by the diagnostic testing and

longitudinal clinical evidence in the evidence of record.” PAGEID

119.

The administrative law judge next found that this

residual functional capacity precluded the performance of

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plaintiff’s past relevant work. PAGEID 120. Relying on the

vocational expert’s testimony, the administrative law judge found

that plaintiff is nevertheless able to perform other work that

exists in significant numbers in the national economy, including

such jobs as information clerk, retail sales and retail marker.

PAGEID 120-21. Accordingly, the administrative law judge concluded

that plaintiff is not disabled within the meaning of the Social

Security Act. PAGEID 121.2

V.

DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Longworth v. Comm’r of

Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence

is more than a scintilla of evidence but less than a preponderance;

it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Jones v. Comm’r of Soc. Sec., 336

F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary of Health & Human

2

After the administrative law judge issued his unfavorable decision,

plaintiff submitted additional materials to the Appeals Council, including

medical records from The OSU Medical Center from August to November 2010;

additional records from Dr. Wynd from 2009 and 2010; a psychological

evaluation report dated July 15, 2010; a home health nurse report dated July

12, 2010; a December 17, 2010 MRI of the lumbar spine report; and treatment

records from the Cleveland Clinic dated March 7, 2011. Page ID 1010-1314. 

Evidence submitted to the Appeals Council may not be considered by the

District Court for purposes of substantial evidence review of the

administrative law judge’s decision. Bass v. McMahon, 499 F.3d 506, 512-13

(6th Cir. 2007); see also Cline v. Comm’r of Social Security, 96 F.3d 146, 148

(6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey v.

Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993). 

Moreover, plaintiff does not explain why the evidence that pre-dated the

administrative decision was not submitted to the administrative law judge. In

any event, plaintiff does not ask for remand of the action pursuant to

Sentence 6 of 42 U.S.C. § 405(g) for consideration of new and material

evidence.

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Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th

Cir. 2007).

In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, Tyra v. Sec’y of Health & Human

Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing Kinsella v.

Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if

substantial evidence also supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff presents four

arguments. She contends, first, that the administrative law judge

erred in rejecting Dr. Cronau’s assessment of plaintiff’s residual

functional capacity and in failing to address the treatment and

reports of plaintiff’s numerous other treating physicians.

Plaintiff next contends that the administrative law judge

incorrectly assessed plaintiff’s credibility by failing to consider

plaintiff’s work history. Third, plaintiff argues that the

administrative law judge erred in relying on the testimony of the

vocational expert because the hypothetical posed to the expert –

which did not include any mental impairments – was flawed. 

Finally, plaintiff contends the administrative law judge misapplied

the Medical Vocational Guidelines (“Grid”).

This Court concludes that the administrative law judge

mischaracterized the record relating to plaintiff’s mental health

treatment and failed to properly consider – or indeed even mention

– Dr. Cronau’s assessment of plaintiff’s diagnosed mental

impairments. The Court therefore concludes that the decision of

the Commissioner cannot be affirmed and that remand of the action

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is warranted. Under these circumstances, the Court need not and

does not resolve the other issues raised in plaintiff’s Statement

of Errors.

The administrative law judge considered, and rejected,

Dr. Cronau’s assessment of plaintiff’s physical capacity, relying

instead on the February 2008 assessment of Dr. Wynd, another of

plaintiff’s treating physicians, and on the assessments of the

state agency physicians. However, the administrative law judge

failed to even consider Dr. Cronau’s May 2008 assessment of

plaintiff’s mental capacity, which indicated that plaintiff was

markedly impaired in a number of work-related areas. Perhaps this

oversight flowed from the administrative law judge’s finding that

plaintiff does not suffer a severe mental impairment. According to

the administrative law judge, there was no diagnosis or treatment

of any mental impairment by a mental health professional prior to

2009. PAGEID 115. Even if this were true, however, that fact alone

would not excuse the administrative law judge from further

considering whether and to what extent that diagnosis and treatment

affected plaintiff’s ability to engage in work-related activities. 

In any event, however, the administrative law judge’s

characterization of the record in this regard is inaccurate. Dr.

Cronau’s treatment records include a diagnosis of depression as far

back as 2005. See, e.g., PAGEID 477-78 ( “Depression - stable

[with] meds”); PAGEID 523 (Wellbutrin prescribed for depression). 

Moreover, the administrative law judge was required to consider the

opinions of plaintiff’s treating physician, Dr. Cronau, regarding

her patient’s mental impairments. Even if the administrative law

judge found that those opinions were not entitled to controlling

weight, he was still obligated to evaluate those opinions by

reference to the standards of 20 C.F.R. §§ 404.1527(d)(2) - (6),

416.927(d)(2) - (6); see Blakley v. Commissioner of Social Security,

581 F.3d 399, 406 (6th Cir. 2009), and to give good reasons for the

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weight accorded to those opinions. Rogers v. Commissioner of Social

Security, 486 F.3d 234, 242 (6th Cir. 2007), citing Soc. Sec. Rul. 96-2p,

1996 WL 374188, at *5. It is not apparent that the administrative law

judge considered Dr. Cronau’s assessment of plaintiff’s mental

impairments; he certainly did not give good reasons for the weight

assigned to that assessment.

Because the administrative law judge failed to properly

consider the evidence of plaintiff’s claimed mental impairments, the

Court concludes that the matter must be remanded for further

consideration of that evidence.

It is therefore RECOMMENDED that the decision of the

Commissioner be reversed and that the action be remanded to the

Commissioner of Social Security for further consideration of the evidence

relating to plaintiff’s claimed mental impairments.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the

basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver of

the right to de novo review by the District Judge and of the right

to appeal the decision of the District Court adopting the Report

and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith

v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370

(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).

Date: July 25, 2012 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

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